V PALANISAMY Vs. SHANMUGHA GOUNDER

JUDGEMENT

(1.) THE petitioner/first respondent has filed this Miscellaneous Petition praying this Court to set aside the order dated 29. 10. 2008 passed in C. R. P. (P. D) No. 3531 of 2008 in allowing the civil revision petition.

(2.) ACCORDING to the learned counsel for the petitioner, the petitioner has figured as first respondent in C. R. P. (P. D) No. 3531 of 2008 and has filed a suit as plaintiff seeking the relief of specific performance pertaining to the property covered in the purported agreement entered into by him with the respondents No. 3 and 4 before the learned Additional and Sessions Judge (Fast track Court No. 1, Coimbatore) and that the petitioner herein has taken a specific plea that the property mentioned in the alleged agreement is not in existence on ground and that in I. A. No. 198 of 2008 in O. S. No. 840 of 2004 filed by him praying for appointment of an Advocate Commissioner to inspect the property and to identify the property with a help of a surveyor has been allowed by the trial Court and further that he filed a Caveat petition No. 3761 on the file of this Court on 10. 09. 2008 and a copy of the acknowledgment for receipt of the Caveat petition on 15. 09. 2008 by the first respondent has been submitted for perusal and the first respondent ought to have asked his counsel at Chennai to furnish a copy of the type set of papers to his Advocate for the purpose of filing necessary counter to substantiate his case and moreover this Court has passed final order in the civil revision petition on 29. 10. 2008 without proper notice being served either to the petitioner counsel at Chennai or to the petitioner or to the counsel on record of the trial Court at Coimbatore, and inasmuch as the first respondent has obtained the final order in the civil revision petition behind his back has committed and played a fraud on the Court and also on the opposite party and therefore the order passed by this Court in the civil revision petition needs to be set aside in the interest of justice.

(3.) IN support of the contention that the respondent/revision petitioner has not submitted any sketch or revenue map together with the plaint to identify the suit property with four boundaries in conformity with Order VII Rule 3 of Civil procedure Code and Rule 11 of Civil Rules to Practice, the learned counsel for the petitioner cites the decision of Hon'ble Supreme Court Vimlesh Kumari kulshrestha Vs. Sambhajirao and Another reported in (2008) 5 SCC 58 at page 58, at special page 59 wherein it is held that: "in an agreement to sell immovable property failure to annex map giving full description of property rendered the agreement unenforceable".